JUDGMENT

(Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.12 of 2000 dated 18.12.2000 on the file of the Sub Court, Bhavani reversing the judgment and decree made in O.S.No.268 of 1997 dated 12.01.2000 on the file of the Additional District Munsif Court, Bhavani.)

1. The defendant in O.S.No.268 of 1997 on the file of the Additional District Munsif Court, Bhavani, is the appellant herein.

2. The suit in O.S.No.268 of 1997 had been filed by the 1st respondent herein, seeking declaration of title with respect to the suit property and for permanent restraining the defendant therein / appellant from interfering with peaceful possession. The suit property is situated at Somasundarapuram in Old S.F.No.831-B and 897-A, R.S.No.792/7. In this survey number the suit schedule consisted of 10 cents with house constructions bearing Door Nos.75, 76 and 77 (Old Door Nos.1/53, 53-A, 53-B and 12/111/E.6). The suit was dismissed by judgment dated 12.01.2000. The plaintiff then filed A.S.No.12 of 2000 before the Sub Court, Bhavani. The said appeal suit was allowed by judgment dated 18.12.2000. This has necessitated the defendant to file the present Second Appeal.

3. The Second Appeal had been admitted on 06.09.2001 on the following three substantial questions of law:-

“i). Whether the Lower Appellate Court is correct in placing the burden of proof on the defendant and not on the plaintiff?

ii). Whether the finding of the Lower Appellate Court that the plaintiff has acquired title by adverse possession are vitiated by grave infirmity?

iii). Whether the findings of the Lower Appellate Court that the plaintiff has got right in the suit property are based on legal evidence?”

4. On hearing arguments on 21.06.2022, the following additional substantial question of law had been framed:-

“iv).Whether the plaint had been properly framed in view of non-seeking of relief for cancellation of the gift deed?”

5. Pending the Second Appeal the 1st respondent / plaintiff died and his legal representatives had been brought on record as 2nd to 6th respondents.

O.S.No.268 of 1997 (Additional District Munsif Court, Bhavani):-

6. The plaintiff, V.S.R.Arthanarisamy, claimed that the suit property originally belonged to him as his absolute property. He had formed a layout which was approved by the Bhavani Town Municipality on 01.12.1965. As a pre-condition for such approval, he had executed a gift deed on 19.08.1965 in favour of the panchayat with respect to the suit property for providing road, ditches and park. He sold the remaining portions of land and the purchasers have built houses and are in possession.

7. He however, claimed that the suit property which had been gifted had not been put to use by the defendant / Bhavani Town Municipality. There were constant attempts to encroach. Consequently, to prevent encroachment, he entered into the said property and constructed a tiled house and two sheds. He claimed that the panchayat had also allotted door numbers and that the property was also assessed to tax. He claimed that he had been in possession of the said built portion and therefore, filed the suit seeking declaration of title by claiming prescription of title by adverse possession and also permanent injunction restraining the defendant from interfering with possession. He also stated that though the defendant had issued notices to vacate, the defendant had lost their right to use the suit property.

8. The defendant filed a written statement denying that the plaintiff had perfected title by adverse possession. It was stated that the plaintiff had no right, title or interest over the property, having gifted the same by way of a registered gift deed. It was stated that the possession of the plaintiff was only as a trespasser and therefore, notices had been issued to vacate the property. It was therefore stated that the suit should be dismissed.

9. On the basis of the pleadings, the Additional District Munsif,